The evolution of legal systems from early human societies to the present day is a fascinating journey that reflects the growing complexity of human civilisation.

Initially, as humans transitioned from nomadic lifestyles to settled agricultural communities, the need for rules around ownership and resource management naturally arose. As these communities grew into more complex societies, the need for a more organised legal system became apparent.

This is where the legacy of Roman Law comes into play. Its profound and enduring influence extends beyond the boundaries of ancient Rome, shaping contemporary legal systems worldwide. Rooted in the philosophies of ancient Greece, Roman Law introduced the concepts of res communis and res nullius, which have significantly shaped our understanding of public property and ownership. Res communis refers to resources shared by all, such as air and water, while res nullius applies to ownerless property that can be claimed by the first possessor, like wild animals or abandoned items.

As human capabilities and ambitions expanded, so did the need for more sophisticated legal frameworks. During the Age of Exploration (15th-17th centuries), European maritime exploration and colonial expansion sparked disputes over sea routes, territorial waters, and trade. These conflicts escalated in the 20th century with offshore oil exploration.

To address these issues, the United Nations established modern maritime law, culminating in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), known as the “Constitution for the Oceans.” It governs the high seas as global commons (res communis) and grants coastal states rights over marine resources within their Exclusive Economic Zones (EEZs).

Roman legal principles have also influenced international air law, particularly in the 1944 Chicago Convention on International Civil Aviation, which established the freedom of the skies and the framework for safe global air transport.

However, human exploration has now pushed beyond our planet’s boundaries, making space the latest frontier. It is intriguing to consider that Roman jurists, who developed principles like res communis and res nullius, might have envisioned the Moon as a common heritage of humanity, a source of light during dark nights. However, they could not have anticipated the need for laws and treaties to regulate its use as a potential resource for Earth’s inhabitants.

Today, as we venture beyond Earth, the principles of res communis and res nullius prompt crucial considerations for the governance of outer space.

The rivalry between the Western bloc (mainly the US and its European allies) and the Eastern bloc (primarily the former Soviet Union, later Russia, and China) has been a defining factor of the post-World War II era. This rivalry also fuelled competition in fields like trade, technology, and space exploration.

Just as European maritime exploration and colonial expansion necessitated the development of global maritime law, the launch of the Soviet satellite Sputnik I in 1957, followed by the US satellite Explorer I in 1958, marked the beginning of the Space Age and underscored the need for an international legal framework to regulate space activities.

In 1959, the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS) was established to promote peaceful space exploration and uphold international laws. UNCOPUOS has facilitated the development of the five foundational treaties that govern activities in outer space along with five declarations and legal principles.

These treaties are the Outer Space Treaty (1967), the Rescue Agreement (1968), the Liability Convention (1972), the Registration Convention (1976), and the Moon Agreement (1984). The first and most widely ratified of these is the Outer Space Treaty of 1967, which has also been ratified by Egypt.

OUTER SPACE: Formally known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, the Outer Space Treaty serves as the cornerstone of space law.

The treaty prohibits member states, including the US, Russia, and China, from asserting national sovereignty over outer space or any celestial bodies, and it forbids the placement of nuclear weapons or other weapons of mass destruction in orbit. Furthermore, it mandates that outer space be used exclusively for peaceful purposes, allows all states to explore and use space freely without claiming sovereignty, and requires that astronauts, as “envoys of mankind,” be protected and aided in emergencies.

Unfortunately, space law has not evolved as fast as technological advancements, and broad treaties alone are insufficient to address the complex challenges and risks emerging in outer space. According to the Outer Space Security & Governance report by the US magazine Foreign Policy, the global space economy is projected to exceed $1 trillion by 2040, underscoring the increasing importance of space technology.

Satellites have become indispensable in modern technology, fulfilling a wide range of functions. They are crucial for communication, navigation, meteorology, scientific research, and military and security applications. However, the extensive use of satellites also presents significant risks and challenges, ranging from space debris to security vulnerabilities, issues far beyond what Roman jurists could have foreseen.

First, there is the question of space debris.

In the context of satellite operations, space is not as boundless as one might assume. According to the website Look Up Space, the number of active satellites has now surpassed 10,000. As of June 2024, there are 10,019 active satellites, with approximately two-thirds (6,646) belonging to Starlink, SpaceX’s satellite constellation founded by US entrepreneur Elon Musk. Most of these satellites (9,254) are positioned in low-Earth orbit (LEO).

The growing congestion in Earth’s orbits is further intensified by space debris, which includes defunct satellites, spent rocket stages, and fragments from collisions. The Space Debris Office at the European Space Agency (ESA) estimates that as of 15 August 2024, there are about 40,500 objects larger than 10 cm in diameter in Earth’s orbit. Though small, these objects travel at such high velocities that a collision with a 10-cm fragment could catastrophically damage an operational satellite. As more objects are launched into space, the risk of collisions rises, potentially triggering a cascading effect known as the Kessler Syndrome, which could render entire orbits unusable.

Recent anti-satellite (ASAT) tests conducted by China, India, and Russia have exacerbated the problem, each generating thousands of debris fragments larger than 10 cm, along with numerous smaller pieces that are difficult to detect with current technology.

Efforts to mitigate space debris include advances in satellite design, debris removal technologies, and the US voluntary moratorium on kinetic, ground-fired ASAT tests. However, the increasing number of space players, including non-state actors like SpaceX, and the mutual distrust among global powers complicate efforts to reach comprehensive agreements on regulating and mitigating space debris risks.

Second, there is the question of the militarisation of space.

In 2019, former US president Donald Trump declared that “space is the world’s newest war-fighting domain,” highlighting the increasing significance of space in national security strategies. In December of the same year, the establishment of the US Space Force (USSF) marked a pivotal development in this regard, making it the sixth branch of the US military and the first new branch since the creation of the Air Force in 1947.

This move signifies the dawn of a new era in military strategy, one fraught with complex calculations and the potential for large-scale destruction.

A space-based weapon capable of destroying satellites or inflicting significant damage on terrestrial targets could fundamentally alter global power dynamics. To date, the systems developed and tested have been primarily Earth-based, direct-ascent ASAT weapons. The US, China, India, and Russia have all demonstrated their capabilities by targeting and destroying their own satellites in orbit, and there are indications that other nations may be developing or already possess latent ASAT capabilities.

The existing legal framework governing space activities, including the Outer Space Treaty, is increasingly outdated and inadequate to address the complexities of space militarisation. The traditional view of space as a res communis is increasingly strained. As the strategic importance of space assets grows, states are adopting more aggressive stances to protect their interests, raising the spectre of space weaponisation. This could transform space from a support domain for military operations on Earth into a battlefield in its own right.

However, just as the doctrine of mutually assured destruction (MAD) during the Cold War prevented the nuclear powers from using nuclear weapons against one another, the space powers have so far refrained from engaging in extraterrestrial warfare, recognising that such conflicts would likely lead to catastrophic “globally assured destruction.” Nevertheless, history has shown that relying solely on rational behaviour in the face of fluid geopolitical landscapes is fraught with risk.

SPACE MINING: Third, there is the question of space mining.

Resource-rich regions have historically been a source of territorial disputes and even wars on Earth. Space mining, which involves extracting valuable minerals and resources from celestial bodies like asteroids, the Moon, and Mars, has evolved from science fiction into a promising industry, raising concerns about potential extraterrestrial conflicts.

For instance, Chinese scientists recently discovered a “brand-new method” of producing large quantities of water using lunar soil, as reported by Reuters. The Moon is also believed to contain significant deposits of helium-3, a potential fuel source for nuclear fusion reactors. Many asteroids are rich in valuable minerals, including platinum, gold, and rare earth elements.

Unfortunately, the Outer Space Treaty lacks clear provisions on resource extraction, leading to varying interpretations and ongoing debates about the legality of space mining. In recent years, countries like the US, the UAE, Luxembourg, and Japan have recognised the rights of private entities to own and profit from resources extracted in space. This has raised concerns about potential conflicts with international law and the possibility of heightened tensions among space actors.

To navigate these challenges, experts must provide decision-makers with up-to-date information on the astropolitical landscape to better understand the situation, potential developments, and risks. This approach also opens up opportunities that should be seized.

Egypt is well-positioned for this, given its historical and contemporary expertise in space and astronomy. Ancient Egypt was among the earliest civilisations with advanced astronomical knowledge, integral to religious practices. Astronomy is also crucial in Islam, guiding lunar calendar calculations, prayer times, and the qibla direction in prayer. Muslim astronomers, such as Al-Battani, Al-Sufi, Al-Biruni, and Nasir Al-Din Al-Tusi, made significant contributions to astronomy, influencing Western science during the Renaissance through their translated works.

Standing on the shoulders of this historical heritage, Egypt founded the Egyptian Space Agency (ESA) in 2018 to advance space science and technology, with a focus on satellite development and launches. Headquartered in Cairo and overseen by the president, the ESA has launched significant satellites like EgyptSat-2 for urban planning and agriculture, and NExT-SAT 1, which has achieved 40 per cent technology localisation.

Prior to the foundation of the ESA, Egypt’s space efforts included the 1971 establishment of the National Authority for Remote Sensing and Space Sciences (NARSS), which focuses on space research and sustainable development projects.

Egypt’s diplomatic expertise has been a longstanding strength. In 2023, Egypt was unanimously elected to preside over a UN team of experts drafting a treaty to prevent an arms race in outer space. To capitalise on this, Egypt should develop new capabilities and prepare experts in legal and other fields related to space. I hope to see Egyptian universities introduce international law courses and postgraduate programmes focused on space law. The ESA’s existing partnerships with Egyptian universities should be expanded to include more programmes addressing the legal aspects of space science and technology.

One major mistake that both states and individuals can make is failing to recognise changing realities and acting as though current conditions will remain permanent. Those who succeed in reaping the benefits of new challenges while avoiding the associated risks are the ones who perceive these shifts on time and act accordingly.

Space is often called the “final frontier,” but it is merely the latest one.

*The writer is an in-house lawyer in Egypt.

* A version of this article appears in print in the 12 September, 2024 edition of Al-Ahram Weekly